dissenting:
I respectfully dissent.
Examination of the entire record in this case, both common law and transcript, compels the conclusion that there never was a contract or agreement for the sale of real estate because the requisite of a particular parcel of property which could be the subject of an agreement was lacking. The firmly established rule is that to warrant specific performance of a contract to convey land the contract must definitely point out the land to be conveyed or furnish means of identifying it with certainty. Hogan v. Orr, 341 Ill. 58, 173 N.E. 162; Heroux v. Romanowski, 366 Ill. 297, 168 N.E. 305; Kopprasch v. Satter, 331 Ill. 126, 162 N.E. 141; Crocker v. Smith, 366 Ill. 535, 9 N.E.2d 309.
The asserted oral contract in the case- at hand is plainly lacking in any definite description or in any indicia that would lead to the tract, or a tract, or, indeed, to any tract. The trial court and the majority here have simply furnished a description for the parties after the fact of occupation of some land by the plaintiffs.
At the time the asserted oral contract was made the description was insufficient. One acre out of 40 acres is extremely indefinite. There are 40 square one-acre tracts in 40 acres but when you consider the possibility of the number of irregular one-acre tracts that could be described in a 40-acre field, the possibilities are almost without limit.
The total lack of any description of the land intended was heralded by the “description” contained in plaintiffs’ complaint:
“One acre, more or less, situated in the Southwest Quarter of the Southwest Quarter of Section 27, Township 9 South, Range 2 West of the Third Principal Meridian, in the County of Jackson and State of Illinois.”
That which was foretold was fulfilled. After the trial and the decree, there is still no description. The decree ordered conveyance to plaintiffs of:
“[T]he subject premises inside the retaining wire as identified by the evidence after the plaintiffs have procured a survey of the subject premises ° *
The best description plaintiffs were able to furnish was in the testimony of plaintiff Walter Thomas:
“Q. Now, describe this property as best you can in which you are now in possession and have been since June of 1975?
A. Well, I don’t know how to describe it. It’s on the back comer of his property right after you cross the railroad tracks down from Mack Ashman’s farm. You turn to the left as you cross the tracks, and we have a fence all the way around the property that I am living on.
Q. And did you — When did you put that fence on there?
A. He [Moore] put a wire up first and I [Thomas] put a few strands up later after he put one strand up on the property line.
# # #
Q. And this is all within the confines of that fence?
A. Yes.”
I believe the error of the majority is compounded by confusion over the fence. With regard to the fences the majority states:
“The tract of land in question is the back comer of Moore’s property, enclosed by a fence, with railroad tracks mnning behind it. Thomas testified that Moore told him he could have an acre in the corner of the property by an old well. Thomas said there was a fence around the area which had to be cut to bring the trailer into the area. Mary Thomas also testified that the area was enclosed by a fence which had been there since they moved onto the property. Walter Thomas said that Moore ran a single strand of wire across the opening to prevent his cattle from getting out and Thomas later added more wire.”
It thus appears that the majority found only one fence involved and that defendant “ran a single strand of wire across the opening to prevent his cattle from getting out.” But there was no such testimony by plaintiff Walter Thomas.
The evidence conclusively shows that two fences were involved. One enclosed the 40-acre tract owned by defendants prior to any of the events that transpired in this case, no matter whose version of the facts is believed. It was this fence that plaintiffs cut to gain entry to the 40. After plaintiffs had established themselves upon the 40 the defendants erected a single strand wire fence around plaintiffs’ zone of occupation and to the cut in the original fence in order to prevent their (the defendants’) cattle from escaping from the original cut in the “forty acre” fence. Plaintiffs later added two additional strands of wire to this second fence for purposes of their own.
The testimony which describes the two fences involved was as follows, all from plaintiff Walter Thomas:
“Q. Was there a fence that you had to cut to get into this place where the well was located?
A. There sure was.
Q. And was this fence left open?
A. Yes, sir. It was.
Q. And did his cattle get out?
A. They’re still getting out.
# # #
A. * * # You turn to the left as you cross the tracks, and we have a fence all the way around the property that I am living on.
Q. And did you — When did you put that fence there?
A. He put a wire up first and I put a few strands up later after he put one strand up on the property line.
# # #
Q. And when Mr. Moore strung this wire, it was to keep his cattle in, was it not?
A. If it was, he didn’t put up enough fence because he left an opening for them to walk right on through between the barn and the corral where I had my horse.”
The parties give opposing stories as to the reason why the Thomases gave the radio to Moore and moved their trailer onto the property. Thomas claims it was pursuant to a contract for deed, Moore insists that the radio is and always has been the property of Thomas, that Thomas wanted to get the radio from the home of his ex-wife and had no place to put it so left it with Moore and insisted that he have the use of it. If Thomas is forced to move off the property, or, according to Moore’s story, even if Thomas does not move off the property, then the radio still belongs to Thomas. It is true that Moore has had the use of the radio for over a year but it is likewise true that Moore has had a place to park his trailer for about 2!£ years. Were their trailer parked elsewhere than on the Moore property, the Thomases would be out of pocket the monthly rent on a trailer site.
It is certainly true that plaintiffs made substantial improvements in the occupied zone and that they are in possession thereof. However, such possession and improvements do not justify the courts in writing a contract for a deed where none was in existence in the first instance. It is obvious that there are equities to be adjusted between these parties and I would have that done after an appropriate hearing rather than compel conveyance of a tract of land whose description is yet to be determined.
By such procedure equity would not be disserved nor justice denied, and the integrity of the law of conveyancing would remain intact.